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The following appeared in "Times of India", Mumbai Edition on May 31, 2009, page no. 03.

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CrPC (133) empowers magistrate to pass order for “removal of nuisance’’.

BMC could court trouble on failure to clean drains

Mumbai: With the monsoon ready to lash M u m b a i , many citizens are worried that they will again have to undergo the annual misery of wading through flooded homes and streets only because the BMC failed to clean up choked drains and nullahs.

People feel helpless in trying to get the municipality to act and find themselves stonewalled by red tape. The answer may lie in the use of a little known but powerful provision of the Criminal Procedure Code (CrPC), under which a common man can knock on the doors of the local magistrate and get a judicial order asking the municipality to do its job.

Section 133 of the CrPC empowers a magistrate to pass an order for “removal of nuisance’’. Thus, if citizens of a locality believe that constant dumping of debris in a nearby nullah or an obstruction to a drain is going to result in flooding, then they can approach a magistrate under this section to get the BMC to put an end to such a nuisance.

“It is a powerful provision in hands of the people,’’ said advocate Pradeep Havnur. “It can be used to force the BMC to take action,’’ he added. Lawyers pointed out that by resorting to this provision, citizens will not have to approach the Bombay high court by filing a writ or a Public Interest Litigation (PIL) every time they want the BMC to clean up a drain.

On receiving a complaint, the magistrate is likely to order a preliminary inquiry and ask the BMC to submit a report on the citizens’ grievances. Thereafter, he can also pass a conditional order asking the BMC to clean up the choked drain or nullah.

In a landmark case decided by the Supreme Court, the municipal corporation of Ratlam, a town in Madhya Pradesh, was ordered to construct drains and toilets, provide proper sanitation and hygiene after residents filed a complaint under section 133 of the CrPC that the stench in their vicinity was unbearable.

Interestingly, the term ‘nuisance’ is not capable of an exact definition under the law and broadly means an act or omission which causes injury, danger or annoyance to common public. Thus, recently actress Kunika Lal used section 133 of CrPC to take action against vehicles that were parked illegally in her locality and were cause of trouble for motorists and residents alike.